February 22, 2011

Friendship and the Law: A Response

I AM GRATEFUL for Eric Posner’s thoughtful review of Friend v. Friend in The New Republic. It scores some hits and misses. Most centrally—and one could miss this from the tone—he concedes the main thrust of the book: this is an interesting subject that is worth writing and thinking about, and I am correct that the law is already “regulating” friendship, however unconsciously. But his review is ultimately a missed opportunity to engage the book and its main ideas on their own terms.

At its core, the book tries to make the case for a more careful attunement of policy and law to the needs of friends, to the form of care they can provide, to the ways they help us survive, transact, vote, and stay healthy. That project invites hard questions and requires very cautious answers. The book starts a conversation, inviting others to furnish missing data and their own clever ideas. Posner concedes that the category of friendship is a meaningful one but he still wants the conversation shut down.

Posner writes off my modest law reform agenda as a “damp squib.” Given how unexplored my subject matter is in the book, I chose to tread lightly and show the reader how hard and sticky these issues are; there are a range of permissible answers to the questions I want to bring to the reader’s attention. I have views about the best way forward—but I always make clear that there is lots of social science yet to be done that could illuminate this area of law and policy.

Still, I cite literally dozens of cases (actual cases in public records, not hypotheticals) that are candidates for what Posner calls “intra-friendship abuse”—and discuss how the courts approach them. Posner acknowledges my culling of these many cases in the first part of his review and then seems to forget them later when he calls for evidence that we are screwing things up. The contradictory hodge-podge of rulings on these issues could use some analysis and attention; the book attempts that project, quite apart from its general arguments for friendship-promotion. I can’t imagine Posner thinks the current state of the law is, in any sense, optimal. I would think the burden might shift to those who want to defend the status quo.

Given that Posner essentially concedes that the proposals I offer as solutions are relatively low-cost, I’m not sure how many negative externalities have to be shown and in what magnitude to justify my recommendations. I leave that to the economists; I have no doubt that some of my proposals could cost more than they would yield in benefits. Ultimately, though, I want a society more sensitive to friendship because I am convinced that there is much to be gained with the small-scale proposals I recommend, that a public policy and law attuned to friendship would forge a better world for us. It may be grandiose, but I also think our politics would be better in a society that took friendship more seriously, that our law would have more resonance for the average citizen, that our culture would be a more virtuous one. There is no neat equation that can prove these propositions, but I don’t think equations are the only way to make an argument.

A final point about Posner’s odd marriage discussion at the end: his claims here really misconstrue the book, albeit in a review that is otherwise quite sharp and well-done. The book actually makes clear why I do not think that regulation of friendship ought to be implemented as we approach the regulation of the family: I spend much of the book (and especially the chapter Posner highlights for praise) explaining how different friendship and marriage are—and how the law should be careful not to simply treat friends as spouses. Distinguishing those forms of intimacy is very much a challenge the book undertakes directly.

At the end of Posner’s review (and in his own moment of romanticization), he seems to acknowledge the special importance of friendship. Although his perspective on marriage as a mere business was somewhat jarring, it is undoubtedly the case that the law takes an interest in our intimacies and relationships of trust for many reasons. I want to open up a new field of inquiry to make sure friendship gets its due. That may not be easy to do with the blunt instrument of law and public policy—but we ignore friendship and shut off an important conversation about it at our peril, as the book shows. Posner concedes the law is already there doing some regulating; let’s talk—in a more friendly way—about how to be there with somewhat more sophistication and be cautious not to trample a most important social institution.

Ethan J. Leib is a professor of law at the University of California’s Hastings College of the Law and is a visiting professor of law at Fordham Law School.